“Fair dealing” is an important statutory exception provided by the Canadian Copyright Act.
These Guidelines expand the concept of fair dealing, give additional background to the 4th question in Western’s Copyright Decision Map, and indicate the kinds and levels of copying typically encompassed by the fair dealing exception. Follow Western's Fair Dealing Analysis to apply the fair dealing exception to particular situations. Remember that other statutory exceptions or conditions outlined in the Map may apply to your situation.
Articulated in Section 29 of the Copyright Act of Canada, the Fair Dealing exception permits the limited non-commercial use of copyright protected material without the risk of infringement and without having to seek clearance from of copyright holders or pay a royalty. It is perhaps the most significant statutory exception, particularly for us at Western.
According to the Supreme Court of Canada in its ruling in CCH Canadian v. Law Society of Upper Canada (2004), the fair dealing exception is “always available” to users (49). Provided that its legal requirements are met, there is no need to look to the additional, more specific exceptions that follow in the legislation in order to reproduce a work without seeking copyright clearance. Fair dealing, therefore, has considerable significance as we consider our options when contemplating using copyright-protected works. Although it is called the fair dealing exception in the Act, the 2004 Supreme Court ruling also indicates that fair dealing constitutes a “user's right" which "should not be interpreted restrictively" (48).
The Copyright Modernization Act (2012) made significant amendments to the Canadian Copyright Act, including the addition of education as a specific allowable purpose under the fair dealing exception. This explicitly expands the availability of the fair dealing exception in the university setting.In May 2015, The Copyright Board of Canada also provided additional clarity in applying the fair dealing exception in its Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in Its Repertoire [Provincial and Territorial Governments – 2005-2014]. As part of its detailed deliberations regarding the tariff amount payable to Access by the Governments, the Copyright Board worked systematically through the CCH fairness factors.
“Fair dealing” is not explicitly defined in the Copyright Act. Section 29 of the Act merely itemizes the eight specific purposes to which the exception can be applied and for three of them stipulates the added requirement for attribution. It states that copying for these named purposes is not infringement, but gives no indication about what constitutes “fair”.
The concept of fair dealing has evolved significantly over the last decade through amendments to the Act itself as well as specific case law and decisions of the Copyright Board of Canada which assist in interpreting it. The Copyright Modernization Act (2012), expanded the purpose to encompass education and parody and satire. Case law including Supreme Court rulings in cases including CCH Canadian v. Law Society of Upper Canada (2004), Alberta (Minister of Education) v. Canadian Copyright Licensing Agency (Access Copyright) (2012), and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada (2012), established and refined a multi-factor analysis for assessing fairness; determining whether a particular copying activity or other dealing falls within the scope of fair dealing. The Copyright Board of Canada, in arriving at its decision in setting tariffs for use of material in the Access Copyright repertoire payable by Canadian Provincial and Territorial Governments, worked systematically through the fairness factors the Supreme Court established in the CCH ruling. This analysis forms Section XII of the decision and provides additional clarity in applying the fair dealing exception.
To qualify for fair dealing, two broad ‘tests’ must be passed. The first considers the purpose of the dealing. The second focuses on its scope. Together these conditions factor into establishing degrees of fairness and subsequent use without seeking specific clearance. Follow Western's Fair Dealing Analysis to apply the fair dealing exception to particular situations.
As articulated in the Act, the activity for which the copying is done must be for one or more of these specified purposes:
Since it is a statutory condition, purpose must be satisfied. The use of a copyright-protected work or “dealing” at Western will typically be for a research, a private study or an educational purpose that includes teaching, and thereby pass the first test.
In its landmark CCH v. Law Society ruling in 2004, the Supreme Court of Canada identified six factors that are relevant in determining whether or not a particular dealing is fair. The Copyright Board decision in 2015 acknowledged confusion with terminology in the first CCH factor labeled “purpose” in the English edition of the ruling, and clarified its intent by referring to it as the goal of the dealing.
These factors are:
The relevance of the factors depends entirely on the context. Sometimes, certain factors will be much more significant than the others. It is also not necessarily the case that all six factors need to be satisfied. Consult the Supreme Court CCH Ruling (2004) and the Copyright Board of Canada Decision (2015) for additional information.
Western believes the following Fair Dealing Exception Guidelines and employing our Fair Dealing Analysis tool will provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court and Copyright Board decisions. They also provide a good sense of the extent of copying that Western views as likely to be considered fair dealing in most contexts, understanding that there may be additional scope for copying in the University setting. These additional circumstances may require some guidance. Contact email@example.com when in doubt.
The Fair Dealing Exception Guidelines assume that
Further, the guidelines concentrate specifically on situations where fair dealing needs to be considered, and not with other exceptions which have separate statutory requirements but may be available even if fair dealing is not; for example, the classroom use of video, or the creation and dissemination of user-generated content.
Keep in mind that both quantity and quality factor into fair dealing analysis. Employing fair dealing scope factors in addition to amount may be necessary if copying of a work exceeds 10 percent or when the copying is of a single chapter of a book that consists of only 2 or 3 chapters in total, for example. In some circumstances an entire work may be reproduced, such as a poem, a photograph or a drawing when it is part of a collection or anthology.
The Fair Dealing Exception is only one of several statutory exceptions contained in the Canadian Copyright Act. Other exceptions or conditions outlined in Western’s Copyright Decision Map may apply to your situation.
Click here to access the pdf version of these guidelines.
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Adapted with permission from the University of Toronto’s Fair Dealing Guidelines